Wrynn v. Johnson

SHENK, J.

Robert S. Lee died on the twentieth day of September, 1922, in the city and county of San Francisco, leaving an estate therein consisting of real and personal property of the appraised value of $17,784.35. On the next day his will, bearing date December 31, 1918, was filed with the clerk of the superior court in and for said city and county. After proceedings duly taken the will was proved and admitted to probate. Bequests of $100 each were left to some fifteen different institutions and individuals, including Kitty' Tooty Johnson, who was also made residuary devisee and legatee. None of the persons named in the will was related to the decedent. The first and final account of the executor was settled and allowed and the court postponed distribution of the estate until it was determined to whom distribution should be made pursuant to the issue of heirship tendered by the petition of Josephine Marie Lee Wrynn, who claimed to be the daughter of the decedent and a pretermitted heir and who prayed that the entire estate

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be distributed to her. Upon the trial of the issue the court found that the petitioner was not the child or any heir at law of the decedent and, therefore, not entitled to any portion of said estate. From a judgment entered accordingly Mrs. Wrynn prosecutes this appeal.

The court found that Robert S. Lee, the decedent, and Marie Dierse engaged in a marriage ceremony on the sixteenth day of May, 1895, in the city and county of San Francisco,; that they lived together until they separated about three years thereafter, and that the decedent commenced an action for and was, on March 26, 1903, granted a divorce from Marie Dierse Lee in the superior court of the city and county of San Francisco. The appellant was born on July 5, 1895, and it is undisputed that she was the daughter of Marie Dierse Lee, the same person who engaged in the marriage ceremony with the decedent and who was divorced by the decedent about eight years thereafter. It also appears as an undisputed fact that the appellant was not named in said will.

The appellant bases her claim to heirship first upon the presumption of legitimacy declared by section 193 of the Civil Code that “all children born in wedlock are presumed to be legitimate.” She then contends that under section 195 of the Civil Code “the presumption of legitimacy can be disputed only by the husband or wife, or the descendant of one or both of them,” and that none of the parties to the present proceedings belongs to any of the classes of persons entitled to dispute her legitimacy.